PEOPLE v. MONTALBO

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Jorge L. MONTALBO, Appellant.

Decided: October 26, 1998

Before O'BRIEN, J.P., and JOY , FRIEDMANN and GOLDSTEIN, JJ. Susan Bloch Marhoffer, White Plains, for appellant. William L. Murphy, District Attorney, Staten Island (Karen F. McGee and Jillian B. Spitzer, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered August 19, 1996, convicting him of assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the Supreme Court properly determined that the complainant's statement identifying the defendant as the person who shot him was admissible as an excited utterance.   The “statement was made spontaneously, under the stress of a startling event, and not made under the impetus of studied reflection” (People v. Masas, 244 A.D.2d 433, 664 N.Y.S.2d 85;  see also, People v. Edwards, 47 N.Y.2d 493, 419 N.Y.S.2d 45, 392 N.E.2d 1229;  People v. Faucett, 185 A.D.2d 942, 587 N.Y.S.2d 397).

 The defendant's contention that the evidence is legally insufficient to support his conviction is unpreserved for appellate review since he made only a general motion to dismiss before the trial court and did not raise the issues now pursued on appeal (see, CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Clausell, 223 A.D.2d 598, 636 N.Y.S.2d 823).   In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Faucett, supra;  People v. Osborne, 238 A.D.2d 445, 657 N.Y.S.2d 343, affd. 91 N.Y.2d 827, 666 N.Y.S.2d 556, 689 N.E.2d 526).

Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5];  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

MEMORANDUM DECISION.

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